Opinion
NO. 2014-CA-000228-MR
06-05-2015
STEPHEN L. BILES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Roy Alyette Durham II Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Taylor Payne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NO. 12-CR-00590
OPINION
AFFIRMING
BEFORE: COMBS, KRAMER AND TAYLOR, JUDGES. COMBS, JUDGE: Stephen Biles appeals his conviction for first-degree assault in Boone Circuit Court. After reviewing the record and the law, we affirm.
On September 4, 2012, Biles waited for Wanda Griffin outside her place of employment in Covington. Biles and Griffin were in a dating relationship. When Griffin left work, they rode the bus together to Florence. They exited the bus and then crossed the street to a parking lot. According to Griffin, as they walked through the parking lot, Biles suddenly jumped on her back, pulled her to the ground, and began hitting and kicking her.
At some point, Biles called 911 for medical attention for Griffin. He admitted to the dispatcher that he had perpetrated the assault on Griffin. During the phone call, Biles said, "I beat the [expletive] out of you" and "you [expletive] with the wrong dude." When the police and EMT's arrived, Biles was standing over Griffin; she was extremely bloody and was lying on the ground. He continued to repeatedly tell the responders that he had kicked Griffin's ass because she deserved it. The police officers had to threaten Biles with a taser in order to take him into custody. During the booking process at the jail, Biles asked a woman if she needed a boyfriend because he had just kicked the [expletive] out of his girlfriend.
In the meantime, the EMT's transported Griffin to the hospital. She was covered in a massive amount of blood - so much that one of the EMT's thought that she was dead when he first saw her. She had a deep laceration on her forehead which exposed her skull. She also had a laceration on the bridge of her nose. There were multiple fractures in Griffin's cheekbone, and there was bleeding on her brain.
In order to repair the fractures of Griffin's cheekbone, doctors performed reconstructive surgery. They inserted metal plates and screws which are permanent. She stayed at the hospital overnight until she was released to a caretaker. Griffin lived with her caretaker for ten days because she was unable to walk, talk, eat, bathe, or brush her own teeth. The doctors prescribed liquid pain medication because Griffin could not swallow tablets.
Biles was charged with first-degree assault. On December 2-3, 2013, he was tried by a jury. The witnesses called by the Commonwealth were several first responders, physicians, Griffin's caretaker, and Griffin. Biles did not call any witnesses. He admitted to attacking Griffin; however, he denied that he had kicked her in the course of the attack. The jury deliberated approximately thirty minutes before finding Biles guilty of assault in the first degree. He ultimately received a prison sentence of fifteen and one-half years. This appeal follows.
Biles's first argument is that the trial court improperly denied his motion for a directed verdict. A directed verdict removes a case from consideration by a jury.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). In criminal cases, unless the Commonwealth proves "each element of a charged crime. . . a motion for a directed verdict by the defendant must be properly entertained." Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky. 1986). On appeal, our standard of review is as follows:
if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal. . . . [T]here must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.Commonwealth v. Benham, 816 S.W.2d at 187-88.
Biles was prosecuted and convicted of first-degree assault pursuant to Kentucky Revised Statute[s] (KRS) 508.010(1). Assault in the first degree occurs when a person "intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . ." KRS 500.080(15) defines serious physical injury as one "which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ." Whether an injury is serious is a question to be decided by the jury. Rowe v. Commonwealth, 50 S.W.3d 216, 221 (Ky. App. 2001).
At trial, the Commonwealth charged that Biles had committed first-degree assault by kicking Griffin; i.e., his boots were dangerous weapons. Biles's defense was that he had only punched Griffin. On appeal, Biles now argues that the Commonwealth failed to prove that he had inflicted a serious physical injury in the sense required by statute.
We first note that Biles points us to Anderson v. Commonwealth, 352 S.W.3d 577, 581 (Ky. 2011), which directs that it is only proper for a jury to consider whether an act did cause serious injury -- not that it had the potential to have caused serious injury. However, this case is distinguishable from Anderson. The Commonwealth's proof complied with the directives of Anderson. It did not focus on what Biles's punches and alleged kicks could have done to Griffin - but rather the injuries that she actually sustained. The Commonwealth offered testimony from emergency responders, physicians, Griffin's caregiver, and Griffin herself regarding the injuries that she in fact had suffered.
Biles argues that there was no evidence that Griffin's injuries were serious because they did not create a substantial risk of death. We agree that the testimony of the treating physicians did not indicate that they believed Griffin's facial injuries were potentially fatal. Additionally, Dr. Arwen Declan testified that while Griffin had some bleeding of the brain, it was not grave enough to monitor after six hours.
However, the emergency responders testified that Griffin was bleeding excessively when they arrived at the scene. As noted above, one of them recounted that his initial impression was that Griffin was dead. The EMT's utilized two sources of intravenous fluids rather than one because of her extreme loss of blood. Our Supreme Court has held that loss of blood creates a substantial risk of death. "The fact that the victim was found before he bled to death does not change the life threatening nature of his injuries." Brooks v. Commonwealth, 114 S.W.3d 818, 824 (Ky. 2003). Therefore, we are persuaded that the Commonwealth presented adequate evidence to support the jury's finding of substantial risk of death.
Biles also claims that the evidence did not support a finding of serious and prolonged disfigurement or impairment of health -- another element of first-degree assault. The seriousness of an injury is determined by the totality of the circumstances on a case-by-case basis. Cooper v. Commonwealth, 569 S.W.2d 668, 671 (Ky. 1978). We are persuaded that the totality of the circumstances in this case amply supports the jury's finding.
Dr. Erik Evans performed surgery on Griffin's cheekbone and explained that it had multiple fractures in the area below her right eye. The fractures were not aligned. Therefore, it was necessary to repair the bone with metal plates and screws. Without the operation and metal supports, there would have been no support for her right eye. The lack of support usually leads to visual problems -- such as double vision. It also causes chronic pain and flattening of the face. Therefore, the metal plates which are providing bone structure will remain in Griffin's face permanently.
Griffin also endured a painful recovery from the operation. For ten days, she lived with a caretaker because she was unable to perform day-to-day functions such as eating and walking. Griffin saw Dr. Brian Walters, her primary physician, the week following the surgery. He prescribed liquid pain medication because she was still unable to swallow pills. Dr. Walters testified that he saw Griffin again approximately five weeks later and renewed a prescription for pain medication.
We are persuaded that the effects of Griffin's injuries constitute the kind of "impaired physical health" which is contemplated by the statutes. In Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006), a two-month recovery period for a broken bone was held to be a prolonged impairment of health. We are mindful that the holding in Schrimsher considered the age of the victim - two months, a lengthy amount of time in the life of a six-month-old infant. Id. at 329. Our Court has held that a fracture which took four weeks to heal was prolonged impairment in an eleven-month-old child - (a smaller ratio than was the case in Schrimsher). Clift v. Commonwealth, 105 S.W.3d 467 (Ky. App. 2003). However, we held that in general, a broken bone is sufficient evidence to support a finding of serious physical injury. Id. at 470-71 (quoting Tracy A. Bateman, J.D., Annotation, Sufficiency of Bodily Injury to Support Charge of Aggravated Assault, 5 A.L.R.5th 243 (1992).
While our research has not revealed any published cases which address Griffin's specific type of injuries, several unpublished cases provide guidance. In Davis v. Commonwealth, 2003 WL 21039985 (Ky. App. May 9, 2003), we held that the victim suffered prolonged impairment of health and serious prolonged disfigurement when he was unable to eat and had a metal plate implanted due to a jaw injury. The inability to eat for several weeks also supported an instruction of serious physical injury in Lowe v. Commonwealth, 2011 WL 2696376 (Ky. App. Jul. 8, 2011). Our Supreme Court has held that a reasonable juror could interpret as serious physical injury one requiring surgery under general anesthesia, insertion of plates and screws, and the inability to walk for two days. Stuckey v. Commonwealth, 2009 WL 160618 (Ky. Jan. 22, 2009).
Griffin suffered all of the injuries just cited. We recapitulate that she had surgery under general anesthesia for the purpose of insertion of metal plates and screws. As a result, she was unable to care for herself for ten days. Her doctor testified that several weeks after surgery, she still took liquid pain medication because of her inability to swallow. While the unpublished cases that we cited are not binding authority, they provide persuasive guidance leading us to conclude that the instruction on serious physical injury was appropriate.
Biles also argues that the Commonwealth committed prejudicial discovery violations. Kentucky Rule[s] of Criminal Procedure (RCr) 7.24(1) requires the Commonwealth to disclose to the defendant any oral incriminating statements which the defendant made to any witness.
Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). Our Supreme Court has defined abuse of discretion as a court's acting arbitrarily, unreasonably, unfairly, or in a manner "unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In this case, Biles claims that the Commonwealth failed to disclose: 1) that Biles stated to police that he had kicked Griffin; and 2) that Biles told a woman in jail that he had just kicked the [expletive] out of his girlfriend. Both statements were related to the jury by Florence Police officers during their testimony. Biles objected and asked for a mistrial, which the trial court denied.
The first statement was given during the testimony of Officer Kevin Duncan. He was the first responder; he related that when he arrived at the scene, Biles was standing over Griffin repeating that he had "kicked her ass." The Commonwealth then introduced photographs taken by Officer Duncan. One of them revealed Biles's bloody boot. The Commonwealth asked Officer Duncan why he had taken that particular photograph. Officer Duncan replied, "based on his statements that he kicked her."
Biles then objected, arguing that he had not received any discovery which revealed that Biles had ever stated that he kicked Griffin. After a lengthy discussion at the bench, the trial court asked Officer Duncan to clarify his statement outside the presence of the jury. Officer Duncan then explained that Biles had said that he had "kicked Griffin's ass" - not that he had kicked her. The court then allowed Officer Duncan to clarify his testimony to the jury. He repeated his recitation of Biles's actual words. Officer Duncan also testified that he had taken the picture of the boot because of the extreme amount of blood on it.
Biles claims that Officer Duncan's statement that Biles admitted to kicking Griffin was used against him. However, Officer Duncan clarified what Biles actually said. We believe that any error was harmless. Furthermore, no prejudice was created because the statement was cured by Officer Duncan's clarification. See Heflin v. Commonwealth, 689 S.W.2d 621 (Ky. App. 1985).
The other statement which Biles argues was not properly disclosed was the testimony of Detective Mike Dikhaus. He had transported Biles to jail on the night of the assault. Detective Dikhaus testified that when they arrived at the booking area, he "heard [Biles] ask a female prisoner if she was looking for a boyfriend because he was looking for a new girlfriend because he had kicked the [expletive] out of his."
Biles again objected, claiming that the statement had not been disclosed to him. The Commonwealth responded that it was disclosed in a spoken conversation one week prior to trial. Biles's counsel then apologized for missing the statement in the conversation and asked that future verbatim statements be memorialized in writing. She made no further arguments, and the trial court overruled the objection. Because Biles accepted the answer and the trial court's ruling, no error has been preserved for appeal. See Rankin v. Commonwealth, 265 S.W.3d 227 (Ky. App. 2007). Therefore, the issue of discovery violations is moot.
We affirm the judgment of the Boone Circuit Court.
ALL CONCUR BRIEF FOR APPELLANT: Kathleen K. Schmidt
Roy Alyette Durham II
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Taylor Payne
Assistant Attorney General
Frankfort, Kentucky